Filed 5/30/14 P. v. Daly CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant,

 v.

JAMES E. DALY,

Defendant;

JAMES E. DALY et al.,

Real Parties in Interest and 

Appellants.

 H037241

 (Monterey County

 Super. Ct. No. M77763)

James E. Daly and his wife, R. Daly appeal from an order of the trial court 

denying their request to exonerate bail and set aside the motion for summary judgment.

STATEMENT OF THE FACTS AND CASE

In May 2004, Mr. Daly was charged with 22 counts of molesting his stepdaughter 

(Pen. Code, § 288, subdivision (a)).1 Bail was set at $500,000. Mr. Daly was the sole 

owner of real property in Carmel Valley, California, and deposited the property as a bond 

for bail. Mr. Daly executed and recorded a promissory note in the amount of $500,000 

 

1

 All further statutory references are to the Penal Code.
2

and deed of trust to secure the note in favor of the Monterey County Court Executive 

Officer. 

Mr. Daly married his wife, Mrs. Daly, in May 2004. In February 2005, Mr. Daly

conveyed the real property to himself and Mrs. Daly as husband and wife, tenants in 

common. 

Mr. Daly and his wife decided to sell the property to substitute cash for the 

property bond, and to secure funds for his legal fees. In late March or early April 2005, 

an offer was made on the property. The sale closed on April 29, 2005, and the proceeds 

were approximately $617,000. 

When escrow closed on April 29, 2005, the promissory note of $500,000 was paid 

in full to the Superior Court.2 

The trial in Mr. Daly’s case began in March 2005. On Friday, April 8, 2005, both 

sides rested their cases. On that weekend, Mr. Daly fled to Ireland by way of Canada. 

On Monday, April 11, 2005, Mr. Daly failed to appear in court, and on Wednesday, April 

13, 2005, Mr. Daly was convicted in absentia on all counts. 

After Mr. Daly absconded in mid-April 2005, there was approximately 

$123,588.72 remaining in the escrow account from the sale of the property. The district 

attorney prosecuting Mr. Daly served a search warrant on the title company that 

maintained the escrow account to seize the remaining funds on the grounds that they 

would likely be used to facilitate Mr. Daly’s escape. 

 

2

 Respondent argues in a cross-appeal at the end of their response brief that 

Mrs. Daly lacks standing in this case, because “she has no legal interest in the $500,000 

bail money.” Although the original promissory note on the property bond was executed 

only by Mr. Daly as the sole owner of the property, at the time the bail was forfeited, the 

property was owned jointly between Mr. and Mrs. Daly. As a result, the $500,000 in sale 

proceeds that was used to pay the promissory note was jointly owned between Mr. and 

Mrs. Daly. Mrs. Daly most certainly has a legal interest in the $500,000 bail money, and 

had standing to bring the motion to exonerate bail and vacate summary judgment. 
3

On April 18, 2005, the District Attorney mailed a “Notice of Bail Forfeiture” to 

Mr. and Mrs. Daly. The notice of forfeiture read, in relevant part: “Notice is hereby 

given that the bail in the above-entitled case was ordered forfeited by the Court due to the 

defendant’s failure to appear on the date shown below. Your contractual obligation to 

pay this property bond will become absolute on the 185th day following the date of 

forfeiture unless the Court orders the forfeiture set aside and the property bond 

reinstated.” On January 10, 2006, a summary judgment was entered on the bail 

forfeiture. 

After Mr. Daly left the country, his wife did not know where he was until he called 

her from Ireland. When Mrs. Daly received the call, she immediately reported it to 

investigators, along with information about Mr. Daly’s credit card transactions. A federal 

warrant was issued for Mr. Daly’s arrest on April 20, 2005. 

Meanwhile, Mrs. Daly retained an attorney and filed a motion for the release of 

the remaining funds in the escrow account that were seized. The district attorney 

opposed the motion, despite the fact that Mr. Daly was in custody at the time. At the 

hearing on the motion, the trial court denied Mrs. Daly’s request for release of the funds. 

On October 1, 2005, Mr. Daly was arrested in Uruguay while traveling from 

Buenos Aires. Despite the fact that Mr. Daly signed a waiver of extradition, Uruguayan 

authorities required formal extradition proceedings before Mr. Daly could be returned to 

the United States. Extradition was granted on February 13, 2007, and Mr. Daly was 

returned to Monterey County on March 7 or 8, 2007. Mr. Daly was sentenced to prison 

on June 18, 2007. 

On March 2, 2011, Mr. and Mrs. Daly filed a motion to exonerate bail and vacate 

the summary judgment on the ground that the trial court lacked jurisdiction to enter 

judgment due to faulty notice of the bail forfeiture. On June 24, 2011, the court 

determined that the notice met the requirements of due process, and denied the motion. 
4

DISCUSSION

Mr. and Mrs. Daly (appellants) assert on appeal that the trial court erred in 

refusing to grant his motion to exonerate bail and set aside summary judgment.

An order granting or denying a motion to vacate the forfeiture of a bail bond and 

to declare an exoneration of the bond is appealable. (People v. Wilcox (1960) 53 Cal.2d 

651, 657 (Wilcox).) Ordinarily, we review the order under an abuse of discretion 

standard, the trial court’s discretion subject to constraints imposed by the bail statutory 

scheme. (County of Orange v. Lexington Nat. Ins. Corp. (2006) 140 Cal.App.4th 1488, 

1491.) “ ‘[W]hen a statute requires a court to exercise its jurisdiction in a particular 

manner, to follow a particular procedure, or to act subject to certain limitations, an act 

beyond those limits is in excess of its jurisdiction.’ [Citation.] ‘ “The law traditionally 

disfavors forfeitures and this disfavor extends to forfeiture of bail. [Citations.] Thus, 

Penal Code sections [1305 and 1306] dealing with forfeiture of bail bonds must be 

strictly construed in favor of the surety to avoid the harsh results of a forfeiture.” [¶] The 

standard of review, therefore, compels us to protect the surety, and more importantly the 

individual citizens who pledge to the surety their property on behalf of persons seeking 

release from custody, in order to obtain the corporate bond.’ [Citation.]” (Id. at p. 1492.) 

Revenue to the state via bail forfeiture should not be a consideration in a bail controversy.

(Wilcox, supra, 53 Cal.2d at p. 656.)

Here, appellants assert that the court lost jurisdiction to enter the summary 

judgment, because the notice of forfeiture sent to them was inadequate to satisfy due 

process standards.

Section 1305, subdivision (b) provides in part: “If the amount of the bond . . . 

exceeds four hundred dollars ($400), the clerk of the court shall, within 30 days of the 

forfeiture, mail notice of the forfeiture to the surety . . . .” Proper notice in compliance 

with this provision is a necessary predicate to collection on the bond. The subdivision 
5

goes on to provide that the surety shall be released of all obligations under the bond if 

“[t]he clerk fails to mail the notice of forfeiture in accordance with this section within 

30 days after the entry of the forfeiture” or mails the notice to the wrong address.

(§ 1305, subd. (b)(1)-(3).)

Appellants do not dispute that the notice mailed on April 18, 2005 to them

complied with the literal terms of the statute. Rather, appellants argue that the notice was 

ineffective because it failed to recite the statutory provisions under which it was issued 

and under which relief from forfeiture may be obtained, including the time period within 

which to do so. Appellants assert that because they are private parties acting as 

depositors of property to secure his bail, rather than professional bail agents or corporate

sureties, they are entitled to more detailed notice of the procedures to seek relief from 

forfeiture. Moreover, appellants argue that without detail, the notice he received was 

constitutionally defective, and did not comply with due process.

Appellants rely on two California Court of Appeal bail bond forfeiture decisions 

People v. Swink (1984) 150 Cal.App.3d 1076 (Swink), and Minor v. Municipal Court 

(1990) 219 Cal.App.3d 1541 (Minor), as well as the principles established by the United 

States Supreme Court (e.g., Memphis Light, Gas & Water Division v. Craft (1978) 436 

U.S. 1 (Craft)), for the proposition that because they are a private parties who provided

bail, rather than a professional bail agent or surety, they is entitled to more detailed notice 

of the forfeiture procedures. 

In Swink, an individual deposited cash in lieu of a bail bond. When the defendant

failed to appear, the cash bail was forfeited and a notice was sent to Swink, stating, “ ‘bail 

will remain forfeited until the defendant appears.’ ” (Swink, 150 Cal.App.3d at p. 1078.) 

Relying on a long line of Supreme Court decisions, including Craft, supra, 436 U.S. 1, 

the court held that the notice was “constitutionally deficient because it fail[ed] to tell

Swink of the statutory procedure to set aside the declaration of forfeiture, including the 
6

time period within which to do so.” The court pointed out that the notice failed to tell

Swink “of the pending action (i.e., the perfection of the forfeiture [citation]), the 

underlying statutory scheme governing forfeitures, or that there were jurisdictional time 

limits. Moreover, it implies the absence of time limitations and the automatic discharge 

of the forfeiture upon defendant’s appearance.” (Id. at p. 1081, fns. omitted.) The court 

considered that the risk of erroneous deprivation of the bail depositor’s interest in 

recouping the deposit “is substantial for those who are not professional sureties or 

bondsmen.” (Id. at p. 1082, italics added.) Because of the constitutionally deficient

notice, the court reversed an order denying Swink’s motion for discharge of the

forfeiture.

The Minor case is similar to Swink. In Minor, the private individual who posted

bail received a notice that stated, “ ‘Pursuant to Section 1305 of the Penal Code, you are 

hereby notified of an order of the Court this date forfeiting bail . . . .’ ” (Minor, supra, 

219 Cal.App.3d at p. 1550.) The court recognized that the notice was distinguishable 

from the notice in Swink, because it “did not affirmatively imply an absence of time limits 

or that forfeiture would automatically be discharged should the defendant appear,” but 

held that the notice nonetheless was constitutionally deficient. “Like the notice in Swink,

it failed to tell of ‘the pending action (i.e., the perfection of the forfeiture . . .), the 

underlying statutory scheme governing forfeitures, or that there were jurisdictional time 

limits.’ [Citation.] Reference to section 1305 alone, without any hint that relief from

forfeiture was available, let alone the time limits for seeking it, was deficient under any 

reasonable reading of Swink.” (Ibid.)

Swink and Minor clearly hold that a notice of bail forfeiture sent to lay individuals 

that does not contain specific information about the statutory provisions under which the 

forfeiture was issued and under which relief from forfeiture may be obtained, is 

constitutionally insufficient to maintain the forfeiture.
7

Appellants certainly qualify as “lay people,” and not professional bail agents or 

corporate sureties.3 Under Swink and Minor, they would be entitled to a more detailed 

notice than what they actually received. Specifically, in order to be constitutionally 

sound, the notice should have contained reference to the statutory provisions for the 

forfeiture and for the relief from forfeiture, including the time period within which to do 

so. 

Respondent relies heavily on City of West Covina v. Perkins (1999) 525 U.S. 234

(West Covina) for the proposition that the minimal notice given to defendant and his wife

in this case was sufficient to satisfy due process. In West Covina, the court stated, “when 

law enforcement agents seize property pursuant to a warrant, due process requires them 

to take reasonable steps to give notice that the property has been taken so the owner can 

pursue available remedies for its return.” (Id. at p. 240; emphasis added.) The West

Covina court went on to state, “[n]o similar rationale justifies requiring individualized 

notice of state-law remedies which, like those at issue here, are established by published, 

generally available state statutes and case law. Once the property owner is informed that 

his property has been seized, he can turn to these public sources to learn about the 

remedial procedures available to him. The [c]ity need not take other steps to inform him 

of his options.” (Id. at p. 241.) Respondent asserts that the “state-law remedies” referred 

to by the West Covina court, are akin to the bail forfeiture notice provisions, and that 

basic notice, as was provided in this case, was sufficient under West Covina to satisfy the 

law.

The significant problem with respondent’s argument is that West Covina was not 

addressing the issue of notice for bail forfeiture; rather, the case involved a seizure of

property pursuant to a search warrant in a criminal investigation. This is a wholly 

different set of circumstances than bail forfeiture. First, the seizure of property pursuant

 

3

 Mr. Daly is a physician, and Mrs. Daly is an artist. 
8

to a criminal search warrant is a temporary deprivation of the property, and the state has 

a legal obligation to return the property once there is no longer a lawful right to retain it. 

Bail forfeiture, on the other hand, is a permanent loss of property of the surety. Second, 

in the seizure of the property under a search warrant, there are no jurisdictional time 

limits during which a property owner must engage in legal procedures for the return the 

property. An owner of seized property has time to investigate what remedies are 

available to him for return of the property. A surety, on the other hand, must act in a very 

specific manner within 185 days to preserve its rights to the property. Under the bail 

forfeiture statutory scheme, there is no time to investigate the remedies available; hence 

the specific notice requirements. This is especially true for lay people, such as 

appellants, who, unlike professional sureties are likely unaware of the specific procedures 

they need to employ to set aside the forfeiture and protect their property.

Unlike West Covina, Swink and Minor dealt specifically with lay people acting as 

sureties and the notice required to be given to them in the event of bail forfeiture. Under 

Swink and Minor, as lay people, appellants were entitled to notice that contained statutory 

provisions under which the forfeiture was issued and under which relief from forfeiture 

could be obtained, including the time period within which to do so. The notice in this 

case did not contain such information.

Respondent focuses on the fact that Mr. Daly himself is responsible for the 

forfeiture because he absconded and remained on the lam, precluding him from arguing 

he was entitled to more detailed notice of the forfeiture. Mr. Daly’s “unclean hands,” 

according to respondent, make the notice requirements for lay people inapplicable to him. 

In addition, respondent points to the fact that Mr. Daly was represented by counsel at all 

times during the proceedings. Presumably, Mr. Daly’s counsel should have informed 

defendant of his right to exoneration of bail and the actions defendant could take to assert 

that right. 
9

The purpose of bail is to ensure the appearance of the defendant, not to generate 

revenue for the state or to punish the surety or the defendant. (See Wilcox, supra, 53 

Cal.2d at pp. 656-657.) Respondent’s insistence that Mr. Daly’s flight during trial 

somehow abrogates the need for constitutionally sound notice reveals its motive to punish 

defendant. 

Moreover, respondent cites no authority for its position that a defendant’s conduct 

determines the extent of notice required. The question of whether notice of the forfeiture 

in this case was constitutionally sound so as to satisfy due process is completely unrelated

to defendant’s actions. Although it is true that Mr. Daly is responsible for the forfeiture 

in the first instance because he left the country during trial, he does not lose the right to 

due process and sufficient notice as a result. The fact that Mr. Daly was represented by 

counsel also has no impact on the question of whether the notice in this case was 

constitutionally sound. 

Finally, and of particular importance is the fact the Mrs. Daly also had a legal 

interest in the property forfeited. Even if we found that Mr. Daly’s conduct somehow 

made the forfeiture notice requirements inapplicable to him, as respondent asserts we 

should do, we cannot overlook the fact that Mrs. Daly was also a lay person who lost her 

interest in the property when it was forfeited. 4 The bail statutory scheme does not 

provide for apportionment or severability of forfeited funds to individuals based on 

conduct. Indeed, the bail scheme is not punitive. (See Wilcox, supra, 53 Cal.2d at 

pp. 656-657.) Mrs. Daly, as a lay person, was entitled to the detailed notice provisions 

laid out in Swink and Minor, and the notice provided here violated her due process rights.

We conclude that the failure to give proper notice of the forfeiture of bail on 

April 18, 2005, resulted in the court losing jurisdiction over the bond. The later 

 

4

Following oral argument in this case, we requested supplemental briefing from 

the parties on the issue of whether Mrs. Daly’s interest in the forfeited bail was 

serverable.
10

declaration of forfeiture and summary judgment taken thereon was therefore void.

(People v. Wilshire Ins. Co (1975) 46 Cal.App.3d 216, 221.) The trial court erred in 

denying appellants’ motion to exonerate the bond and vacate summary judgment. 

DISPOSITION

The order denying the motion to vacate forfeiture and exonerate bond, 

and the order entering summary judgment on the bond are reversed. The cause is 

remanded to the trial court with directions to vacate the forfeiture and exonerate the bond. 

Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

______________________________________

RUSHING, P.J.

WE CONCUR:

 

____________________________________

PREMO, J.

____________________________________

ELIA, J.